Executive Branch

A Mar-a-Lago Showdown in Federal Court

Anna Bower
Thursday, September 1, 2022, 7:40 PM

At least one judge seems to be taking former President Trump’s motion for a special master pretty seriously.

Trump's Mar-a-Lago residence in Palm Beach, Florida. (Wally Gobetz, https://flic.kr/p/4wXpSa; CC BY-NC-ND 2.0, https://creativecommons.org/licenses/by-nc-nd/2.0/)

Published by The Lawfare Institute
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It is 1:07 p.m. ET at the federal courthouse in Palm Beach, Florida, and it’s time for the first big courtroom showdown between former President Trump and federal prosecutors over the FBI’s search of Mar-a-Lago. 

Judge Aileen Cannon enters the courtroom, having already created something of a drama merely by taking Trump’s motion for a special master more seriously than a lot of commentators thought it warranted and stating in an order that she is inclined to appoint a special master. The Justice Department replied with a blistering brief, to which Trump’s team responded last night. And just like that, Trump’s team and the Justice Department lawyers are facing off before a judge Trump appointed and who received Senate confirmation even as the former president was contesting his election loss in a federal courthouse just a few miles from Trump’s own golf resort—which was itself the site of the search at issue in today’s hearing. 

The parties introduce themselves. For the Justice Department, it’s Jay Bratt and Sophia Brill of the department’s National Security Division, along with Juan Antonio Gonzalez—the U.S. Attorney for the Southern District of Florida—and Julie Edelstein. For Trump, it’s Chris Kise, James Trusty, Lindsey Halligan, and Evan Corcoran, the latter of whom actually shows up in the statement of facts section of the department’s brief.

If you didn’t see any live tweeting of the proceedings, that’s because as an initial matter, Judge Cannon reminds spectators that both audio recordings and social media use are prohibited during the hearing. That includes, she adds, directing others outside the hearing to post on social media. So there is basically a media blackout during the hearings.

Cannon next turns to a few case-specific housekeeping issues. First, she reveals that the Justice Department has made available a more detailed inventory list to the Trump team prior to the hearing. And she asks whether either side objects to her unsealing that document. When neither side does, she announces that the inventory will be unsealed. As of this writing, it is still not available on the docket.

She then moves to the next preliminary issue: the status report by the FBI’s filter team, which reviewed the material seized in the search for potential privilege issues. Cannon asks the government if it objects to providing Trump’s team with the status report for review. In response, Bratt announces that the filter team is in court today; he would defer to its judgment on the status report. At this point, two men in black suits stand in the audience and make their way toward the podium. After introducing themselves, one of the two informs the judge that the filter team has no objection to making the status report available to Trump’s team. However, he asks that the document remain sealed and thus out of public view. 

Cannon announces a 15-minute recess to allow the Trump team to review the filter team’s status report for the first time. The documents, she says, are “lengthy.”

During this recess, Trump’s counsel, heads bowed, rifle through the pages of the status report. While they do so, marshals patrol up and down the center aisle, eyeing anyone holding a phone with suspicion. At one point, they dramatically shout the name of a reporter a few rows back. Instructing her to collect her belongings, they remove her from the courtroom. “She tweeted,” someone whispers fearfully. 

Tweeting is verboten—even during recess.

A few minutes later, the marshals nail a second victim. But before they can claim a third, Cannon returns to call the court back into session. It later turns out that both victims are innocent. The wrongly accused are two CNN reporters, Kara Scannell and Tierney Sneed, the network reveals in a letter to the court. In Sneed’s case, CNN says, the marshals mistakenly assumed that she was “transmitting from the courtroom” after her editor published a prewritten story under her name during the hearing. It remains unclear why the marshals also targeted her co-worker, Scannell; but like Sneed, CNN claims, she is not guilty of tweeting or transmitting information during the proceedings.

After Kise confirms that the Trump team has had sufficient time to review the documents, he requests that the court keep the document under seal “out of an abundance of caution,” because it relates to matters involving attorney-client privilege. Cannon agrees.

With housekeeping matters behind her, Cannon now has Kise rise to argue the merits of Trump’s “Motion for Judicial Oversight and Additional Relief.” He begins by observing that there is a “lack of trust” between the parties, a “lack of transparency” in the investigation, and a resulting “lack of faith” in the administration of justice. He implores Cannon to “help restore public confidence” by acceding to Trump’s “modest” request for a special master. This is a case about presidential records in the hands of the 45th president of the United States, he argues, not some case of a Defense Department staffer “stuffing documents in a bag” and sneaking out overnight. A special master will help the parties “find a path forward,” he contends, and allow for greater confidence in the investigative process on the part of the American people.

Next, Kise’s co-counsel, Trusty, makes his way to the podium. He accuses the government of pursuing an “extraordinary” strategy of sidelining the supervision of the court in order to retain control over the investigation. The government’s brief put forward a “phenomenal” argument regarding the Fourth Amendment, he says. Under the government’s theory, he argues, it can seize anything from anyone and get away “scot-free,” so long as it finds something it deems “illegal.” This is the former president of the United States, he says. But what, he muses, if it’s just some average Joe? It’s a bit of an odd argument—a kind of reverse slippery slope: If it can happen to a former president, Warren Buffett may be next, and after him, maybe Kim Kardashian? And where does it all end? It could be your house.

Trusty then complains about a footnote the government included in its motion, where it offered to unseal “a more detailed receipt for the property seized during the August 8, 2022 execution of the search warrant.” In Trusty’s view, that footnote was little more than the government’s effort to say, “Look at the dirt we have!” Similarly, he contends, the government’s inclusion of a photograph of classified documents strewn across the floor was “obviously a press release.” Proclaiming that the court cannot allow this kind of conduct to go “unfettered” and “unchecked,” he practically shouts that this case “cries out for oversight.”

Trusty declares that he wants to “spend a minute on the filter team.” 

“Great to see them,” he says snarkily, gesturing toward the two men in black, who are now seated at a table next to the rest of the Justice Department’s team. He complains that, in his experience, a filter team usually communicates with opposing counsel and involves opposing counsel in the process of determining which materials are protected by the attorney-client privilege. Here, however, he says that the filter team never communicated with the Trump team at all. “I can tell the court that’s just not how filter teams usually work,” he gripes.

As Trusty wonders aloud why the government doesn’t want a special master, Cannon interjects with her first question: What exactly does the Trump team want the special master to do? 

In response, Trusty says that the special master would examine the seized documents and possibly resolve issues related to attorney-client privilege, attorney work product privilege, or matters related to the Presidential Records Act (PRA).

Noticing, as you might have, that Trusty omitted executive privilege from his response, Cannon queries whether the special master would examine any other privilege-related issues. Trusty affirms that executive privilege is “in play” as well. Then, after Cannon promises Trusty that she will have more questions for him later, she directs him to sit down.

Jay Bratt trudges to the podium to respond for the government. He begins by reminding the court that this is a pre-indictment challenge to a search warrant and that, at this stage, the plaintiff thus has relatively limited rights. There are only two bases for the court’s jurisdiction at this point, he explains. First, there’s Rule 41(g) of the Federal Rules of Criminal Procedure, which allows a “person aggrieved by an unlawful search and seizure of property or by the deprivation of property [to] move for the property's return.” But 41(g) doesn’t apply here, he argues. A second basis for jurisdiction, he continues, is found in the court’s “equitable” or “anomalous” jurisdiction. But that would trigger certain burdens that the Trump team simply has not put forward sufficient evidence to overcome.

Delving deeper into the jurisdictional issues at play, Bratt argues that Trump’s motion is “really a 41(g) motion.” But a key factor under 41(g) is a possessory property interest, he says. And because former presidents don’t have a possessory interest in presidential records, “that ends the analysis under 41(g).” In other words, as the government put it in its brief, “Plaintiff has no property interest in any Presidential records (including classified records) seized from the Premises. The PRA provides—under a heading entitled “Ownership of Presidential records”—that “[t]he United States shall reserve and retain complete ownership, possession and control of Presidential records.”

Cannon interrupts to ask whether Bratt is “putting the cart before the horse.” She wonders why, as a matter of Fourth Amendment law, a possessory interest must be established at this stage. In reply, Bratt first reminds the court that Trump had no “reasonable expectation of privacy” because the search was conducted pursuant to a search warrant based on judicial finding of probable cause. He again emphasizes that this proceeding is pre-indictment. If a Fourth Amendment claim needs to be made, then the appropriate time to make it is later in the process—with a motion to suppress evidence or some similar motion.

Cannon asks if a plaintiff could bring a civil action in equity for the return of seized property. Bratt concedes that, yes, a plaintiff could bring such an action. But, he says, such a plaintiff would need to satisfy factors the U.S. Court of Appeals for the Fifth Circuit identified in Richey v. Smith. Then Bratt walks through the prongs of the Richey test, explaining why Trump can’t satisfy them. These include (1) whether the movant can show that the government showed a “callous disregard” for his rights, (2) whether the movant has a need for an interest in the material he wants returned, (3) whether he would be irreparably harmed by the government’s retaining it, and (4) whether adequate remedies exist elsewhere. Bratt reiterates that a federal magistrate found probable cause for the search warrant, and he claims that Trump failed to show irreparable harm. On that point, while he observes that the documents are “potentially incriminating,” he contends that this is not irreparable harm under the Richey factors.

With that, Bratt announces that his co-counsel, Julie Edelstein, will address the special master issue specifically. When Edelstein arrives at the podium, she begins by announcing two general principles related to the appointment of special masters: First, she says, the appointment of special masters is generally disfavored; and, second, courts generally assume that the district court judge or magistrate judge is equipped to handle issues related to privilege. In this case, she says, appointing a special master “would only cause delay.” Finally, while opposing counsel argues that appointment would be a “modest” step, it would, in fact, be “unprecedented.” 

Cannon interjects to ask why a special master appointment would be unprecedented. Edelstein replies that there’s never been a special master appointed on executive privilege issues. Cannon is having none of this. Isn’t that, she asks, because there’s never been a seizure from a former president like this? Edelstein tries to shift gears, pointing to Nixon v. GSA, which held that the examination of Richard Nixon’s records by officials within the executive branch did not violate presidential confidentiality.

But Cannon remains skeptical. Observing that Edelstein might be “overreading Nixon,” she queries why “for some period of time,” a former president couldn’t assert executive privilege over certain documents. In response, Edelstein implores the court to “focus on the legal provisions.” Here, she says, that’s the PRA. 

And the PRA makes clear that presidential records do not belong to former presidents; they belong to the United States in the person of the archivist, who assumes control of the documents on the president’s departure from office. In other words, the documents were not Trump’s at the time of the search. Since the former president “blatantly disregarded the provisions of the PRA,” she argues, the PRA would not apply here. And what’s more, she adds, there’s a venue provision in the PRA that would require Trump to bring suit in the District of Columbia if he wanted to proceed under the PRA. But Trump chose not to do that. We are far from PRA land, Edelstein is saying.

Now Cannon muses about what, exactly, the harm is in appointing a special master. She wants to know if there is anything other than a general concern with delay that holds the government back from endorsing the idea. Edelstein stresses that delay of a criminal investigation is a legitimate concern, as would be the “unprecedented” finding that executive privilege could be asserted against members of the executive branch pursuing executive branch business. Finally, she says, there’s an ongoing risk and damage assessment taking place at the Office of the Director of National Intelligence (ODNI), and the appointment of a special master could interfere with that process.

Cannon, apparently unconvinced by this response, asks if Edelstein’s view would change if she ordered the special master to proceed without interfering with the ODNI review but pausing the criminal investigation while he or she sorts out privilege questions. Edelstein insists that even that would cause great harm.

Observing that some of the documents recovered are covered by the attorney-client privilege, Cannon asks Edelstein why a special master would be inappropriate to deal with those issues. Edelstein explains that the filter team is already prepared to “dispose” of those materials. Moreover, she says, all the cases involving the appointment of attorney-client privilege special masters involve searches of law offices with multiple clients. Here, there is only one client and the search did not involve a law office. This is the type of issue in which we assume a district court judge or a federal magistrate judge is capable of handling any privilege issues that might arise.

Thanking Edelstein, Cannon instructs the Trump team to respond to the department’s arguments on the Richey test. Trusty strides to the podium, where he explains that addressing the Richey test is “difficult” because his team is still “blinded” with respect to large parts of the investigation. They don’t have enough information, he suggests, to determine whether there were “omissions” or “misrepresentations” made to Magistrate Judge Bruce Reinhart in seeking the warrant.

Cannon, being persistent, asks Trusty to describe the “irreparable harm” that would be caused to Trump if she declines his request for a special master. Trusty complains that this is a “criminalized investigation” of a dispute with the National Archives and Records Administration. He compares it to an “overdue library book” that has been made into a criminal matter. So, he contends, anything that furthers the investigation would cause irreparable harm.

Continuing this line of inquiry, Trusty suggests that the precedent set by turning the PRA into a criminal action implicates “broader concerns” for the institution of the presidency. He continues to be “astounded,” he says, that the Justice Department cannot accept a little bit of judicial involvement.

Now Cannon directs her attention to Bratt’s earlier argument that Trump’s Fourth Amendment claims be litigated later. Why not wait for relief, she asks, until later? Trusty admits that he could wait for a Franks hearing or file a motion to suppress at a later stage. But at that point, he gripes, there’s already been an indictment. And, he says, the government wants to ignore language in Rule 41(g) that specifically ties it to the Fourth Amendment: The rule specifically refers to relief for “an unlawful search and seizure of property.” He complains that this was a “colonial times” search, where agents had discretion to “take whatever they want.”

Cannon then proceeds to another question: If she appoints a special master, is there a need for the court to conduct a Rule 65 analysis under the Federal Rules of Civil Procedure to temporarily enjoin the use of documents for the criminal investigation? Trusty says that he “doesn’t see the harm in it.” He offers to brief the issue if the court needs a more detailed response.

After Trusty sits down, Bratt pops back up to address the Rule 65 question. He tells the court that it would have to conduct a Rule 65 analysis. Cannon pushes back, informing him that she’s seen special master orders that don’t go through the Rule 65 inquiry. Bratt insists those cases are different, because they involve attorney-client privilege.

Bratt then pivots back to the irreparable injury discussion. To start, he says, the government’s position is that the court has to accept that this was a lawful search made pursuant to a lawful warrant issued by a magistrate. This was not an “end-run” around the PRA, he says. And the fact that a criminal investigation will continue is simply not the type of injury courts have ever held to be irreparable harm. He observes that Trump cites no case with such a holding. “And I don’t think the court could find one,” he declares.

Bratt next hits back at Trusty’s complaints that there was a lack of communication with Trump’s counsel about potentially privileged documents. He reveals that the day after the search, the Justice Department declined a request for a special master from the Trump team. But, he says, Trump’s counsel knew the identity of the filter lawyers and could have communicated with them at any time. What’s more, Bratt’s office informed the Trump team on the second day after the search that the filter team had begun its review and would take approximately two weeks to complete it.

Cannon now shifts the focus back to Bratt’s argument that special masters have been appointed only in cases involving attorney-client privilege. She wants to know if there’s any case that actually cabins the authority to appoint to attorney-client privilege cases. And, she adds, isn’t there a case in which the government references possible review by a special master for executive privilege? Bratt acknowledges that the government did allude to executive privilege review by a special master in the Rudy Giuliani case. Still, he says, the special master in that case never did review executive privilege. While Cannon appears unconvinced by this reply, she seems satisfied that she’s heard enough and directs Bratt to sit down.

As a final order of business, Cannon announces that she has some inquiries for the filter team. Looking only slightly surprised, one of the men in black walks to the podium to answer her questions.

He diligently walks Cannon through the filter process. First, he says, a filter team prepared the investigation team with an extensive protocol to follow during the search. That protocol included instructions to apply “very broad criteria” for the segregation of potential attorney-client privilege-protected documents during the Mar-a-Lago search. Those criteria, he says, included any document that appeared to contain the name of an identifiable attorney or any document that appeared to involve legal matters. He clarifies that while the motion refers only to the “45 office,” the same filter process applied in fact to all areas involved in the search, including the storage room.

Continuing to detail the filter process, he explains that the potentially privileged material was kept in a separate box on site and, once segregated for the filter team, has since remained in the custody and control of the filter team only. Those documents were transported back to the office, where they remain in a locked room that is accessible only by members of the review team. What’s more, during the review process, the filter team’s attorneys examine the documents and apply legal analysis to determine whether the materials should be classified as privileged. Further, he explains, the filter team was prepared to provide the Trump team with a copy of the items marked as potentially privileged; however, the filter team chose to respect the court’s preliminary ruling on the special master appointment and thus put a pause on that process. 

As for the “inadvertent transmissions” noted by Cannon, the man in black explains that those instances actually show the effectiveness of the filter process.

His first example involves an investigative agent who saw an attorney’s name on a letterhead and promptly turned the item over for review by the filter team. He starts to explain other examples, but he can’t seem to find the words without revealing too much detail. Instead, he ends up explaining that the “bottom line” is that the case team attorney was exercising caution.

When he finishes detailing the filter review process, Trusty is back up to provide final remarks on behalf of Trump. The filter review team, he says, has provided little more than a “self-assessment” of its own process. He then complains that the government’s  concerns regarding the delay caused by a special master appointment are overwrought. He explains that top secret clearance for a special master could be expedited. The government’s arguments, he claims, amount to little more than “throwing trash cans” at the person chasing you. All we’re saying, he declares in closing, is “get another set of eyes on it.” 

As Trusty strolls back to his table, Cannon announces that she won’t issue an oral order from the bench today. Instead, she says, the “court will be entering a written order in due course.” 

And with that, we’re done for the day.

Anna Bower is Lawfare’s Legal Fellow and Courts Correspondent. Anna holds a Bachelor of Laws from the University of Cambridge and a Juris Doctorate from Harvard Law School. She joined Lawfare as a recipient of Harvard’s Sumner M. Redstone Fellowship in Public Service. Prior to law school, Anna worked as a judicial assistant for a Superior Court judge in the Northeastern Judicial Circuit of Georgia. She also previously worked as a Fulbright Fellow at Anadolu University in Eskişehir, Turkey. A native of Georgia, Anna is based in Atlanta and Washington, D.C.

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